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February 11, 2020
Would it be improper for a President to write a character letter for a defendant facing federal sentencing?
The question in the title of this post is obviously precipitated by the extraordinary developments surrounding federal prosecutors' multiple sentencing submissions in the Roger Stone case (details here and here). Prez Trump apparently told reporters today that he did not tell the Justice Department to change its sentencing advocacy, but he did claim that he would have "the absolute right to do it." I do not know enough about DOJ rules and executive authority to weigh in on this claim, but I do know that this discussion got me to thinking about whether and how it might be proper for a President to share his or her perspective on a federal defendant facing federal sentencing.
Federal defense attorneys know how common it is, especially in high-profile, white-collar cases, to argue for sentencing leniency with the help of character letters often written by the most prominent and compelling of individuals who know the defendant well. (I know I have seen such letters authored by elected officials in past cases.) In this case, according to this article in The Atlantic, Roger Stone "has been a presence in the president's life for more than 30 years." Consequently, I cannot help but wonder if Stone's defense attorneys gave any thought to seeking a character letter from Prez Trump.
Whether such a letter was sought or not, I would love to hear from thoughtful readers about whether they think it would be improper for any President to write any character letter for any defendant facing federal sentencing. Does simply being President (perhaps because of clemency powers) serve to make it improper to share knowledge of the character of a defendant?
Prior related posts:
- For Roger Stone, federal prosecutors advocate for within-guideline sentence of 7.3 to 9 years in prison ... which Prez Trump calls a "miscarriage of justice!"
- DOJ now says "sentence of incarceration far less than 87 to 108 months [for Roger Stone] would be reasonable under the circumstances"
February 11, 2020 at 06:33 PM | Permalink
Comments
It's not only a matter of being POTUS, but also that Stone's career and crimes are quite entwined with DJT.
Posted by: Anne | Feb 12, 2020 3:47:23 PM
No President has apparently ever written a sentencing support letter for a defendant about to be sentenced by a U.S. District Judge (although I am certain that there have been occasional back channel communications between Presidents and Judges). Most Presidents would realize their position and would put the dignity of their office above the needs of the criminal defendant, even if he might be a close friend. He would leave it to others to write the sentencing support letters, and avoid even the appearance of impropriety. It remains to be seen whether President Trump so grasps the dignity of his office and the appearance of impropriety in Roger Stone's sentencing matter.
Posted by: James Gormley | Feb 12, 2020 10:10:32 PM
Although it was somewhat of a different situation, I once saw (circa 1994) a sitting U.S. District Judge, Marvin Shoob (N.D. Ga.) testify during a criminal trial as a character witness for his brother in law, Dan Paradies, who was convicted of corruption (bribery and honest services fraud) connected to his store at Hartsfield International Airport in Atlanta. See, United States v. Paradies, 98 F.3d 1266 (11th Cir. 1996). The trial Judge, defense counsel, the AUSAs and Judge Shoob all agreed that before the jury he would only be identified as "an Georgia attorney", so that the jury would not give improper weight to his testimony. Judge Shoob was one of the best U.S. District Judges I have ever known and seen in action. He served in the Army between 1943 and 1945. During the Battle of the Bulge, Sgt. Shoob had captured several German POWs and was guarding them when a Lieutenant in a Jeep pulled up and asked him what he was doing. He explained that he had captured prisoners, but there was no stockade for incarcerating them, so he was guarding them. The Lieutenant pulled out his submachine gun and promptly shot the German prisoners to death. He told Sgt. Shoob that with the outcome of the war hanging in the balance, he didn't have time to guard stray prisoners and needed to get back into the battle. That night Sgt. Shoob used the bodies of the dead POWs as a wind break, while he slept in his sleeping bag. And he swore an oath to God that night that for the rest of his life, he would never, ever permit anything like that to happen again. After the war, Shoob graduated from law school in 1948, and was a Georgia trial attorney until he was appointed to a newly created Federal Judgeship by President Jimmy Cater (a fellow Georgian), who knew Shoob well. Shoob continued to serve as a U.S. District Judge and a Senior Judge between 1979 and 2016, when he took inactive status. He passed away in 2017, after 37 years on the bench. He always protected the rights of the poor and the powerless against the government, the mighty and the rich. He was the best Federal Judge I ever knew.
Posted by: James Gormley | Feb 12, 2020 10:27:11 PM
I have sometimes seen sentencing letters written by other public officials. It always bothered me when they either referenced their position in the letters or sent in their letters on official letterhead especially when their contact with the defendant or victim was in their personal capacity. Ultimately, there is a difference between the personal position of the individual serving in a public office and the official position taken by that office.
Furthermore, the fact that the person holding the office is seeming to intervene to make an exception to general office policies because it is his friends and allies who are on the receiving end of that policy leaves a bad taste. One thing that this country officially prides itself on is the "rule of law" in which all persons are equal under the law. When public officials intervene in a criminal case in their official capacity to support a friend, it undermines the appearance that the system is fair and impartial. In the case of an intervention by the current president who is technically the boss of the prosectuors, that appearance that the rules are different for the well-connected is more pronounced.
Posted by: tmm | Feb 13, 2020 10:22:25 AM
Stop with the anti-Trump legal masturbation. Stay at home and do it for real. Nobody will tell your mother.
Posted by: Fred Hanker | Feb 15, 2020 5:31:06 PM
